Misrule of Law

Our adversarial system of justice depends on robust advocacy, but in Montana zealous legal representation adverse to the state supreme court can lead to discipline–and election interference.

An abridged version of this article first appeared in The Federalist on October 30, 2024 (here).

Judges are supposed to be impartial and free of bias. In Montana, however, issues involving attorney discipline are decided by a hearing panel appointed by the state supreme court, to resolve charges brought by a prosecutor appointed by the state supreme court. Now, in a long-running separation-of-powers dispute between the state supreme court and the Montana legislature, the court’s hand-picked lackies are proposing to punish the state’s elected Attorney General for simply doing his job–advocating on behalf of the state legislature. This type of self-interested lawfare against a sitting state attorney general is unprecedented in America. Montana’s supreme court is the lawmaker, prosecutor, and judge of its own case!

To recap: As I reported previously in The Federalist (“How ‘America’s Worst Court’ Blocks Judicial Reform,” Aug. 28), and as court watcher Ed Whelan elaborated in National Review’s “Bench Memos” blog (here and here), the left-of-center Montana Supreme Court has launched a brazen vendetta against the state’s Republican Attorney General, Austin Knudsen, in retaliation for Knudsen’s representation of the Montana legislature in connection with judicial reforms enacted in 2021 to rein in the influence of the state’s activist high court, described by one observer as “America’s worst court.” A donnybrook ensued, with Knudsen—ethically duty-bound to zealously advocate of behalf of the state legislature—caught in the middle.

Now, on the eve of an election—Knudsen is on the November 5 ballot seeking re-election–the state supreme court’s minions are proposing a 90-day suspension of Knudsen’s law license. Not surprisingly, Knudsen’s Democratic opponent is using the disciplinary proceedings against Knudsen as a campaign issue. How convenient.

In sprawling and lightly-populated Montana, the seven-member state supreme court is controlled by the left-leaning plaintiff’s bar. Montana’s justices are elected, and one special interest group—the state’s trial lawyers—dominates the funding of “nonpartisan” judicial races. (The lack of a candidate’s party affiliation on the ballot makes it difficult for Montana voters to make an informed choice in judicial races.) For decades, the state supreme court has been badly out of synch with the state’s legislature and governors. Former University of Montana law professor Rob Natelson has described the state supreme court’s rulings as “banana-republic conduct,” questioned its legal competence, and concluded that “Montana’s bench may be unique for its disregard of basic standards of justice, the extent of its intervention into the state’s political life, and its high-handed use of power.”   

While the legislature makes laws and controls the purse, the Montana Supreme Court oversees the state bar and is responsible for attorney discipline. Thus, Knudsen, as the state’s elected Attorney General, is subject to the authority of the state supreme court. Even though the Montana legislature ultimately prevailed regarding passage of the legislature’s reform bill (S.B. 140), and affirming its constitutionality, Knudsen was charged with violating the Montana Rules of Professional Conduct (promulgated by the state supreme court!) for unfairly questioning the integrity of the justices in connection with a dispute over a subpoena the legislature had issued to the court’s administrator. When the state supreme court quashed the subpoena, the legislature—represented by Knudsen—objected that the court’s ruling was invalid due to a conflict of interest. The legislature felt strongly enough to challenge the ruling—albeit without success–all the way to the U.S. Supreme Court.

On October 23, less than two weeks prior to the election, a five-member panel appointed by the Montana Supreme Court, and serving as the court’s “Commission on Practice” issued a decision recommending a 90-day suspension of Knudsen’s law license.  (According to news reports, in May 2022 “a previously appointed special prosecutor had recommended a different sanction — only a private admonition.”) The court’s hand-picked COP panel acknowledged that in challenging the propriety of the court’s quashing of the legislature’s subpoena, Knudsen was directed by his client—the Republican-controlled legislature— “to press the dispute with the Court to its ultimate conclusion.” Decision, p. 29. Unable to retaliate directly against the legislature, the court—through its toadies—is making Knudsen the scapegoat, and setting a vindictive precedent for future internecine disputes.

The latest chapter in the political struggle between the Republican-controlled legislature and the liberal state supreme court began in March 2021, when (as Whelan explains)

over the public opposition of Montana’s chief justice, the [Republican] governor signed into law a bill, SB 140, that changed how mid-term judicial vacancies are filled. The very next day, challengers filed suit in the supreme court seeking a declaration that the law violated the state constitution. Two weeks later, emails surfaced that showed that the supreme court’s administrator, Beth McLaughlin, had sent a group email to every judge in the state while SB 140 was pending and asked them to “review and take a position on” it. Many judges used “reply all” to express their opposition.

The legislature asked McLaughlin to provide the emails. When she claimed to have retained only two of them, the legislature issued a subpoena to the state’s Department of Administration, which provided more than 2,000 pages of documents, including emails in which McLaughlin and the chief justice shared their criticism of judicial-reform bills with other justices.

Montana’s judiciary opposed S.B. 140 because the bill eliminated the seven-member Montana Judicial Nominating Commission, three members of which had previously been chosen by the state’s judiciary. Prior to S.B. 140, the governor could only fill vacancies in the judiciary with candidates approved by the commission. Senate Bill 140 gave the governor unilateral authority to fill judicial vacancies with any attorney in good standing. The judiciary was angered that its influence over judicial appointments was terminated. Although the state’s chief justice opposed the bill, the state supreme court ultimately upheld the  constitutionality of S.B. 140 by a 6-to-1 vote.  

The subpoena battle created the greatest acrimony. Whelan summarizes what happened after the legislature requested that the supreme court’s administrator provide the emails generated by her improper solicitation of judicial opposition to S.B. 140:

In an extraordinary action, McLaughlin then filed an emergency motion asking the supreme court (her boss) to quash the subpoena issued to the Department of Administration. She filed the motion on a Sunday (never mind that the court wasn’t open) in the case challenging SB 140 (never mind that neither she nor the legislature nor the Department was a party in that case), and she failed to provide notice to the legislature. The court quashed the subpoena that same day.

The very next day, McLaughlin filed her own lawsuit to quash the subpoena. The chief justice, who had recused from the other case, didn’t recuse from this one. The legislature moved to dismiss the case, and it also issued subpoenas to McLaughlin and to each of the justices. The court immediately issued an order staying the subpoenas against the justices. That same day, the chief justice informed the legislature that the justices would not provide the requested documents.

The legislature also moved to disqualify the justices from deciding McLaughlin’s suit. The court denied the motion. In July 2021, the court issued an opinion that, in addition to quashing the subpoenas, purported to prohibit the legislature from discussing the documents it had received and ordered it to return them. The legislature refused to return the documents while it sought certiorari in the U.S. Supreme Court. After the [U.S. Supreme] Court denied certiorari, the legislature returned the documents.

In short, this was a bare-knuckled brawl between the Montana legislature and a head-strong state supreme court. Knudsen, as legal counsel for the legislature, was ethically obligated to advocate zealously on his client’s behalf. As is common in hard-fought court battles, harsh words were used in the course of the litigation. The thin-skinned state supreme court—unaccustomed to such criticism–is clearly using Knudsen as its whipping boy to get even with the legislature. As reported in the Daily Montanan at the close of the COP hearing:  

Montana Solicitor General Christian Corrigan delivered the closing for Knudsen, saying that punishing Knudsen for inflammatory, and allegedly derogatory, statements made about the Supreme Court during 2021 litigation would further erode confidence in the judicial system, widen fault lines between partisans, and only make intergovernmental relations worse. “In fact, it will likely only exacerbate the conflict between the branches,” Corrigan said.

Montana’s supreme court is using the attorney discipline system, which it controls, as a weapon in a political dispute. The state supreme court itself will make the final decision on Knudsen’s fate. This is outrageous.

The rule of law is under siege in Montana.  The attorney discipline system is increasingly becoming the go-to weapon for neutralizing crusading conservative lawyers. The state GOP chair accurately denounced the disciplinary proceedings against Knudsen as a “political show trial” before a “kangaroo court commission.” Even worse, the timing of this Kafkaesque travesty amounts to election interference.  

Postscript: Legal scholar Rob Natelson explains how the Montana Supreme Court became the “worst court in America” here.